Legal Precedents
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(1) Kelly –v- An BordPleanala 2014 IEHC 400:
We acted for the applicant in this judicial review of a decision by An Bord Pleanala to grant permission for the construction of a windfarm development in the vicinity of a SPA and SAC in County Roscommon. Ms Justice Finlay Geoghegan found in our client’s favour and determined that the Board had failed to carry out a proper or lawful Appropriate Assessment in accordance with Article 6(3) of the Habitat’s Directive and had further failed to give reasons for its determination. The Honourable Judge granted an Order of Certiorari and quashed the decision of An Bord Pleanala. This case was the first endorsement of the Irish Courts of the case Sweetman –v- An Bord Pleanala Case C258/11 (otherwise known as the Galway by-pass case) as determined by the European Court of Justice in 2011. The ECJ determined that “So far as concerns the assessment carried out under Article 6(3) of the Habitats Directive, it should be pointed out that it cannot have lacunae and must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the protected site concerned”
2) Sandymount and Merrion Residents Association v An BordPleanala [2013]:
We acted for the applicants in this case in relation to a judicial review of the decision of An Bord Pleanala to grant planning permission for a waste water treatment plant at Ringsend. During the course of the proceedings the Respondent and Notice Party brought a motion in relation to our clients legal standing as they were not an incorporated entity. Judge Charleton found against the Respondent and Notice Party in the High Court and on a appeal to the Supreme Court it was determined that Section 50A of the Planning and Development Act 2000 (as amended) provided for a “clear statutory exception” to the general rule that unincorporated bodies and associations did not have capacity to bring legal proceedings.
This preliminary ruling by the Supreme Court was has given further legal clarity for residents associations and other groups who wish to challenge decisions affecting their communities. It is a seminal determination in relation to the application of the Public Participation Directive in domestic legislation.
3) Hunter v Nurendale trading as Panda Waste (2013):
We acted for the applicant in relation to Section 160 proceedings taken against Panda Waste. In the first of its kind, we brought a preliminary motion for a protective costs order pursuant to Section 7 of Environmental (Miscellaneous Provisions) Act 2011. Mr Justice Hedigan granted the protective costs order to our client and set out a test for such an order to be granted in future cases. This was a seminal decision of the High Court in the context of Environmental legislation.
4) Michael Mc Coy v Shillelagh Quarries Ltd and Ors [2015] IECA 28:
We acted for the applicant in this matter who was seeking a planning injunction against the Respondent Quarry pursuant to Section 160. By way of a preliminary application, we issued a motion for a protective costs order pursuant to Section 7 of the Environmental (Miscellaneous Provisions) Act 2011. Ms Justice Baker applied the test set out in Hunter v Nurendale trading as Panda Waste and granted our client a protective costs order.
The Respondents appealed the decision to the Court of Appeal on the basis that the proceedings did not concern the enforcement of compliance with a particular planning consent. The substantive matter concerned a quarry that did not in fact have any planning permission, licence or permit. In a Judgment delivered by the Honourable Court on February 2015, the decision of the High Court was upheld and determined that cost protective orders could also be granted in circumstances where the applicant is seeking to enforce a statutory requirement- ie the requirement to have a permit, licence or planning permission.
This was yet another seminal decision in the context of environmental law.
5) Wicklow County Council v Katie Fortune (no. 2):
We acted for the appellant Ms Fortune who had built a wooden chalet near Lough Dan, County Wicklow without the benefit of planning permission. The Circuit Court Judge determined that the development was unauthorised and ordered that it be demolished. On appeal, Mr Justice Hogan delivered a written Judgment on 6th June 2013 and found that while the chalet was unauthorised by not having the benefit of planning permission, “the making of a Section 160 order on the particular facts of the present case would represent a drastic interference with the inviolability of the dwelling and Ms Fortune’s property rights.” The honourable Judge thereby refused the Order for demolition. It is important to note that this case was determined on very particular facts whereby the Judge determined that on balance, Ms Fortune’s constitutional rights outweighed the need for the order of demolition sought by Wicklow County Council.
6) Madigan v Reuter (2014):
We acted for the Defendants in this trespass action. It was alleged by the Plaintiffs that our clients had trespassed onto their property which abutted a laneway into our client’s home and business. The appeal was heard by the President of the High Court, Mr Justice Nicholas Kearns and ran for one week. The honourable Judge found for our clients and determined that there was no trespass. The matter was highly fraught and required that our clients engage an arborist, Land Commission Solicitor, Landscape Historian and surveyor. In his written Judgment delivered on 12th December 2014, Mr Justice Kearns stated “If the events of this case had featured in the plot of “The Field”, audiences might have regarded them as too implausible to be credible”.
7) Sweetman and Muller v An BordPleanala, Ireland and the Attorney General, The Minister for the Environment Heritage and Local Government; Shell E & P Ireland Limited (2011):
This was a Judicial Review of the decision of An Bord Pleanala and Ministerial Consent regarding Shell’s development at the Corrib gas pipeline in County Mayo
